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POWERS OF THE PRESIDENT OF THE REPUBLIC OF POLAND TO APPOINT JUDGES

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Abstract

In January 2008, for the first time under the rule of 1997 Constitution, the President of the Republic refused to appoint nine candidates for judges nominated by the National Council of the Judiciary. Five of them were candidates for the position of judge in regional courts and four for the position of judge in district courts. This situation revealed imperfection of Polish regulation of the process of appointment of judges. The analysis of the procedure for appointment of judges shows that it is mostly influenced by the judicial community. Diminishing influence of the executive branch on the consecutive stages of the procedure is also apparent. Substantive assessment of candidates is carried out by the National Council of the Judiciary, therefore the role of the President of the Republic in appointing judges is marginal. He may refuse to appoint a judge, but this should be treated as an absolute exception President's. Due to the decision-making rights of the President he functions in the exercise of some of powers as an organ of public administration. As a consequence, however, since the President goes beyond the sphere in which he embodies the majesty of the state and operates as an organ of public administration, there must be control of such actions. It seems that the only remedy to this problem is to undertake legislative work. Amendment of the Constitution may be suggested, so that Article 179 provides not about appointment of judges but rather about giving judicial nominations. But if we assume that, under the check and balance principle, the President of the Republic has to have real influence on the appointment procedure, a system of protection of candidates for judges should be established.

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